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Barbara van Koppen

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... compensation vis- -vis newcomers, also in retrospect ... b. For newcomers: ... Existing lawful use, also for former homelands; newcomers require license ... – PowerPoint PPT presentation

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Title: Barbara van Koppen


1
Formal water rights from a poverty and gender
perspective Deceit, discrimination and
dispossession by design?
  • Barbara van Koppen
  • International Water Management Institute

2
presentation focus - 1
  • Global wave of water law revisions
  • strengthened state ownership
  • administration-based water rights (or
    permits/licenses/ concessions systems

3
presentation focus - 2
  • Poor rural agrarian societies in Sub-Saharan
    Africa (Tanzania, South Africa, Ghana, Zimbabwe,
    etc)
  • Largely underdeveloped water resources high
    proportions of informal water users

4
presentation focus - 3
  • Dominant legacy of legal and institutional
    segregation (recognized for land, but not for
    water hybrid rights)
  • Southern Africa state ownership to redress
    colonial past (e.g., South Africa Gini water use
    0.96)
  • Nation-wide permit systems still have to include
    this majority

Source Cullis and van Koppen Gini in the rural
Olifants basin, South Africa
5
presentation focus - 4
  • Learning lessons from Latin America (Mexico,
    Chile)
  • Lower proportions of informal water users
    claiming indigenous water rights (e.g.
    Bolivia), or no informal users
  • Rights by all water users
  • Everybody, in principle, already included (?)

6
presentation conclusion
  • Formal administration-based water rights systems
    in Sub Saharan Africa
  • (Permits as the states hook to impose
    obligations )
  • Jeopardize state regulation (e.g. taxation,
    information, and allocation)
  • (Rights as formal legal backing of ones water
    use )
  • Dispossess the informal majority by design

7
presentation recommendation - 1
  • Obligations
  • Design targeted and enforceable obligations
    without rewarding the fulfilment of obligations
    with administrative rights

8
presentation recommendation - 2
  • Rights allocate water by
  • Recognizing informal water regimes without any
    burden of proof redressing indigenous rights
    from second to first class rights
  • Ensuring protection and compensation vis-à-vis
    newcomers, also in retrospect redressing
    inequities from the colonial past
  • Setting pro-poor allocation priorities
  • Establishing inclusive forums, building on
    existing conflict resolution
  • Reviving public investments in (small- and
    big-scale) infrastructure development to increase
    the pie for all

9
permits as a hook for obligations taxation - 1
  • Taxation (T,SA, Mex)
  • Short-term success among large users
  • Separate administrations
  • Disconnected from rights (Mex fiscal SA
    formally disconnected T de facto disconnected)
  • Among scattered small-scale users net loss in
    revenue generation (gtgt threshold of de minimis
    rights) (T)

10
permits as a hook for obligations taxation - 2
  • Conclusion
  • taxing easily administrable large users is
    feasible
  • no need to reward tax payers with more rights

11
permits as a hook for obligationsinformation
  • National/basin registration
  • Chile only small proportion existing users
    registered decentralized national register only
    for newcomers for regularized users still in
    progress (Bauer)
  • Mexico every individual/company 320,000
    (Garduno)
  • South Africa 60,000 Tanzania Rufiji basin
    1000500 Uganda lt400
  • Hydrological information still unreliable and
    over-reported (mutual deceit) and in
    inappropriate format (Mex, T, SA, )

12
permits as a hook for obligationsallocation - 1
  • a. Among existing users Increased water use
  • No technical and institutional capacity to
    enforce ceilings among thousands of single users
  • Use of average annual volumes for sharing low
    flows?
  • A formal right for which I paid (T)

13
permits as a hook for obligationsallocation - 2
  • b. For newcomers
  • Permits easy way in, by lack of hydrological
    knowledge and/or weak enforcement (SA, T)
  • Compensation in case of zero-sum
  • On basis of existing rights no need for
    nation-wide permit systems (SA)
  • Do markets compensate better than other doctrines
    (prior appropriation, riparian, state control)?

14
permits as a hook for obligationsallocation - 3
  • c. Increased conflicts
  • New layer of legalistic argument
  • Corruption and fraud, e.g. paper water rights
    trade

15
permits as a hook for obligationsconclusion
and recommendation
  • Conclusion
  • Formal administration-based water rights systems
    in Sub Saharan Africa (Permits as the states
    hook to impose obligations )
  • Jeopardize state regulation (taxation,
    information, and allocation)
  • Recommendation
  • Design targeted and enforceable obligations
    without rewarding the fulfilment of obligations
    with administrative rights

16
rights as formal claimscolonial legacy - 1
  • Legacy of colonial water legislation state
    ownership and permit systems for private use
    right/property dispossession vs. prior
    appropriation (Caponera 1992)
  • Spanish colonies
  • 1493 Papal Bull all new lands and waters to
    catholic kings and kings permits
  • France/civil law classification as public
    requires permits
  • First only, floatable water, then other waters
    in the public interest after 1964 still
    categories of non-domanial water
  • French colonies very little is left to the
    public domain so all waters are declared as
    public waters requiring permits

17
rights as formal claimscolonial legacy - 2
  • UK/ res comunis omnium common law, riparian
    doctrine
  • UK nation-wide permit system only in 1963
  • British colonies dispersed, tied to skewed land
    ownership, partial permits
  • Zimbabwe permit system from colonization onwards
  • Tanzania permits since end 19th century 1948
    the entire property in water within the
    Territory is hereby vested in the Governor, in
    trust for His Majesty as Administering Authority
    for Tanganyika dormant till mid-1990s
    enforcement with new, high fees

18
rights as formal claimscolonial legacy - 3
  • De minimis rights (micro-scale uses with manual
    devices) (Hodgson 2002)
  • no great theoretical justification
  • value judgment is made that takes account of the
    increased administrative and financial burden of
    including such uses within the formal framework,
    their relative value to individual users and
    their overall impact on the water resources
    balance
  • it is hard to see how they provide much in the
    way of security.

19
rights as formal claimsdispossession by design
  • Ghana Water Resources Commission Act 1996
    (Sarpong FAO)
  • By a stroke of the legislative pen and policy
    intervention, proprietary and managerial rights
    which had been held from time immemorial by
    families, stools, and communities have been taken
    away from a people some of who probably had no
    prior knowledge of the matter
  • the Water Resources Commission, in spite of its
    far sweeping powers with regard to water
    appropriation, would have to yield to the
    constitutional requirement of providing prompt,
    adequate, and effective compensation in
    accordance with Article 20 of the Constitution
    for the compulsory acquisition of customary water
    rights as obtains in the case of compulsory land
    acquisition by the state.

20
rights as formal claimsdiscrimination by
administration
  • Communal customary water rights systems are
    impossible to codify and register as individual
    property
  • Administrative procedures
  • Discriminatory conditions e.g. land ownership
  • Disproportionate efforts
  • Lack of information
  • Illiteracy, mobility
  • Gender household based

21
rights as formal claimsredress in South Africa
  • Existing lawful use, also for former homelands
    newcomers require license
  • National allocation priorities for redress
  • Compulsory licensing taking water away from the
    haves to the have-nots without compensation
  • In hot-spots only
  • Legally General authorization for redress
  • Extensive verification and validation of water use

22
rights as formal claimsconclusion
  • Formal administration-based water rights systems
    in Sub Saharan Africa
  • (Rights as formal legal backing of ones water
    use )
  • Dispossess the informal majority by design

23
rights as formal claimsrecommendation
  • Rights allocate water by
  • Recognizing informal water regimes without any
    burden of proof redressing indigenous rights
    from second to first class rights
  • Ensuring protection and compensation vis-à-vis
    newcomers, also in retrospect redressing
    inequities from the colonial past
  • Setting pro-poor allocation priorities
  • Establishing inclusive forums, building on
    existing conflict resolution
  • Reviving public investments in (small- and
    big-scale) infrastructure development to increase
    the pie for all

24
  • Thank you
  • b.vankoppen_at_cgiar.org
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